Search

The United States Court of Appeals for the 11th Circuit recently made a decision in the case of McCluskey El v. Celebrity Cruises, Inc. The court affirmed the district court's decision to dismiss the case, stating that the appellant was adequately informed of the contract's terms and that the pandemic did not justify tolling the statute of limitations. The court emphasized the importance of reasonable communication and the rarity of granting an equitable tolling remedy in maritime tort actions. This decision provides clarity and guidance for future cases involving equitable tolling. [Extracted from the article]

Tort law has failed to respond to the intolerably high incidence of rape and sexual assault in the United States. By any measure, there is glaring disparity between the paltry number of tort claims brought by rape victims and the vast number of sexual assaults committed each year. Among the multiple reasons.for the underutilization of tort law is the inadequacy of traditional doctrinal frameworks for litigating such cases, particularly the assumption that a rape victim must bring an intentional tort claim to recover against an offender. The labyrinthine doctrine of consent that looms large in intentional tort cases has deterred plaintiffs from suing and has made it diffcult for plaintijjk to prevail. even when a defendant's sexual conduct is unwelcome and harmful. Our solution is to allow tort plaintiffs the option of bringing a negligence claim against the omnder, centering the litigation on the unreasonableness of the defendant's conduct rather than the consent of the plaintiff Allowing a negligence claim for rape responds to the countless date- and acquaintance-rape cases in which the defendant's unreasonable conduct has undermined the plaintiff's ability to consent freely-creating a risk of coercion--and to those cases in which a defendant has placed his interests above the plaintiffs by taking a risk that the plaintiff has not in fact consented. The option of negligence will allow juries to evaluate contested cases in a straightforward fashion and will provide a more secure route to adequate compensation, particularly if courts determine that such negligence claims are not subject to the "intentional acts" exclusion in insurance contracts. Courts will jace a variety of doctrinal questions in litigating such negligence-based rape claims, including the proper categorization of the injury as physical versus emotional harm and the availability Of the contributory/comparative negligence defense. Because affording such a negligence option would not preclude plaintillk.from also asserting intentional tort claims, it is important that courts not view such claims as mutually exclusive and that plaintiffs be given the opportunity to argue in the alternative. [ABSTRACT FROM AUTHOR]

The aim of this article is to show difficulties arising when courts judge the negligence of dog owners in absence of precise legislation and typical precedents. We analyze the elements of a crime in two cases where children were objects of canine aggression, and show how the courts constructed the issue of dog owners’ negligence. In Case 1 the Court of Appeal found that a foster parent was not negligent when leaving a boy with specific needs alone with a heavily built dog that then repeatedly bit the boy to death despite the owners attempt to pull away the dog. The court also ignored the signs of substandard animal husbandry including previous severe incidents where the dog owner also was injured. In Case 2, the Court of Appeal instead found that the breed of the dog also matter, and that not even adult presence is enough to protect a child from dog attack. Because both the child and the dog could behave unpredictably, continuous observation and supervision was required. In both cases, measures to prevent the incident were available and would have been easy to carry out.

The modified version of art. 121-3 of the French Criminal Code introduces a hierarchy of the nonintentional forms of guilt according to seriousness. From the perspective of the French legislator, this hierarchy would be the following: deliberate negligence (art. 121-3 para. 2), simple negligence – carelessness, imprudence – (art. 121-3 para. 3) and breaking a duty of care or protection (art. 121-3 para. 4). In the Italian Criminal Code only the conscious negligence is defined, whereas the simple negligence is not defined, but merely exemplified. Thus, article 43 para. 1 states that “There is an offence committed with negligence whenever the result, even though foreseen, is not desired by the agent and occurs because of carelessness, imprudence, lack of skill, or failure to observe laws, regulations, orders or instructions”.

Although in German and in Spanish legal systems there are no express provisions with regard to the criminal negligence (culpa), this has not hindered the legal doctrine and jurisprudence to thoroughly analyse this form of guilt. This made it possible to qualify as intentional offences some deeds which in our legal system are considered to be committed with conscious negligence (involving foresight). The difficulty to distinguish between indirect intention (dolus eventualis) and conscious negligence (luxuria) has nonetheless determined Spanish courts to ask the legislator to provide a clear definition of indirect intention, which could be an additional argument with respect to the weaknesses entailed by such a legal approach.

The author comments on the article "Improving Jurors' Evaluations of Auditors in Negligence Cases," by Kathryn Kadous. The article examined the effect of bias on jurors' decisions on negligence cases involving auditors. Kadous' article also proposed a theoretical framework for the possible influence of knowledge of a negative outcome on the evaluative judgments of jurors in an auditor negligence trial. The author expresses his concerns about the article's theoretical background, experimental design, and analysis of results.

Copyright of Contemporary Accounting Research is the property of Canadian Academic Accounting Association and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The modified version of art. 121-3 of the French Criminal Code introduces a hierarchy of the nonintentional forms of guilt according to seriousness. From the perspective of the French legislator, this hierarchy would be the following: deliberate negligence (art. 121-3 para. 2), simple negligence - carelessness, imprudence - (art. 121-3 para. 3) and breaking a duty of care or protection (art. 121-3 para. 4). In the Italian Criminal Code only the conscious negligence is defined, whereas the simple negligence is not defined, but merely exemplified. Thus, article 43 para. 1 states that "There is an offence committed with negligence whenever the result, even though foreseen, is not desired by the agent and occurs because of carelessness, imprudence, lack of skill, or failure to observe laws, regulations, orders or instructions". [ABSTRACT FROM AUTHOR]

Although in German and in Spanish legal systems there are no express provisions with regard to the criminal negligence (culpa), this has not hindered the legal doctrine and jurisprudence to thoroughly analyse this form of guilt. This made it possible to qualify as intentional offences some deeds which in our legal system are considered to be committed with conscious negligence (involving foresight). The difficulty to distinguish between indirect intention (dolus eventualis) and conscious negligence (luxuria) has nonetheless determined Spanish courts to ask the legislator to provide a clear definition of indirect intention, which could be an additional argument with respect to the weaknesses entailed by such a legal approach. [ABSTRACT FROM AUTHOR]

The article focuses on implications for the criminal justice system and the problematic prosecution of an Asian American police officer in the case the man was convicted of manslaughter, which carries a fifteen year maximum penalty. It mentions the officer was convicted of, criminally negligent homicide, require a gross deviation from the standard of care. It also mentions trigger of his pistol, there would still be no basis for homicide liability.

The article is devoted to the actual problem of the subject aspect of the unlawful carrying out of the archaeological explorations, excavations, other earth-moving and submarine works at the object of the archaeological heritage (according to the Criminal Code of Ukraine part 1,Article 298). During carrying out of the analysis of the subject aspect of the given crime such important characteristics of guilt as essence, extent of guilt, form and content of it have been revealed. The possibility of the commitment of a crime specified by the Criminal Code of Ukraine part 1, Article 298 both with the special intent and with the criminal negligence has been given grounds

The changing doctor-patient relationship and commercialization of modern medical practice has affected the practice of medicine. On the one hand, there can be unfavorable results of treatment and on the other hand the patient suspects negligence as a cause of their suffering. There is an increasing trend of medical litigation by unsatisfied patients. The Supreme Court has laid down guidelines for the criminal prosecution of a doctor. This has decreased the unnecessary harassment of doctors. As the medical profession has been brought under the provisions of the Consumer Protection Act, 1986, the patients have an easy method of litigation. There should be legal awareness among the doctors that will help them in the proper recording of medical management details. This will help them in defending their case during any allegation of medical negligence.

Prevalence of AIDS in recent years on the one hand, and lack of a relevant rule for criminalization and punishment of behaviours transmitting it have required paying a attention to criminal institutions available. In Iran, certain labels such as transimission of STD, murder, quasi – intentional homicide, manslaughter, attempted murder, exerting intentional assault and battery, and infringement of public security, depending on the case seem applicable. However, such labels as threatening against public health do not seem appropriate.In canadion law, among various labels of attempted murder, assault, public nuisance, etc. That of criminal negligence is cuounted a the most proper one for behaviours transmitting AIDS.

The dental profession holds a special level of trust with the patients; the profession makes a commitment to patient that they will adhere to high ethical standard of conduct. In recent times the dental profession is under attack by litigation cases by disgruntled patients who are not satisfied by the treatment. The dissatisfaction can be resolved between patients and doctors but sometimes patient turn to courts to get the matter solved. A litigation case against a dentist causes loss of reputation, loss of income, harassment, mental agony and embarrassment in the society. Hence, to protect oneself from such type of suffering the dentist should have an idea about the rules and regulation guiding their profession, the law and litigation pertaining to their practice and standard protocols to follow to avoid the malpractice cases. The data gathered for this review article was from manual and internet search of records. The following review article provides basic information on ethical principles, dental negligence and related liabilities, case reports and how to make dental treatment more qualitative and accountable. [ABSTRACT FROM AUTHOR]

This Article empirically tests two key questions. First: How sensitive are jurors to variations in the language that delineates the criminal mental state categories? Second: To what extent do jurors assign culpability in the manner assumed by the Model Penal Code (MPC)? In prior work, we challenged numerous assumptions underlying the MPC mental state architecture, which divides guilty minds into four kinds: purposeful, knowing, reckless, and negligent. Our experiments showed that subjects had profound difficulty categorizing some of the mental states, particularly recklessness, in the context of scenarios in which hypothetical actors caused harmful results. And, when asked to punish hypothetical actors, subjects punished knowing behavior and reckless behavior indistinguishably. Here, we extend our prior work in two main ways. First, we show that a person's ability to apply the MPC mental states is susceptible to subtle variations in the language that defines and communicates them. For instance, we demonstrate that using slightly different wording can significantly improve participants' ability to accurately identify the mental state of recklessness (notwithstanding that reckless and knowing mental states remain by far the hardest to classify). Second, we show that even when people can see the mental state distinctions that the MPC draws, they don't necessarily rank order the mental states--by culpability level--in the order the MPC assumes. These findings raise questions about the normative basis for the knowing/reckless distinction in the MPC's mental state hierarchy in the context of result elements. Further, because even small changes in phrasing can produce significant differences in juror evaluation, the findings raise genuine concerns about the adequacy of MPC-based culpability instructions in criminal cases. Our results suggest the need for a critical reexamination of the substantial divide between the expectations and assumptions of drafters of criminal codes, on one hand, and empirical reality, on the other. [ABSTRACT FROM AUTHOR]

The article compares laws related to the liability in negligence for third party criminal acts in the U.S. and Australia, as of May 2013. Topics discussed include High Court of Australia in the case 'Modbury Triangle Shopping Centre Pty. Ltd. v Anzil;' the U.S. court case 'MacPherson v. Buick Motor Company' and 'Donoghue v. Stevenson;' and Australian and American common law on liability for criminal acts of third parties.

Government intrusion into the homes of the working-classes gained momentum through the late nineteenth and early twentieth century. One hitherto unexamined piece of legislation that sought to regulate behaviour was a clause in the Children Act 1908 pertaining to the use of domestic fireguards. This transpired because of the outcry of coroners who conducted inquests into the deaths of children fatally burned in their homes, supposedly a safe refuge, a space constructed as a maternal responsibility. Coroners increasingly believed such accidents were a result of either maternal carelessness or negligence, especially those involving unguarded fires and absent mothers. Yet, limited by inadequate laws and unwilling juries, the coroner could do little but admonish the mother. However, growing Government concern over the abilities of working-class mothers and the health of the nation finally brought the issue of absent fireguards and burnt children to Parliamentary debate, culminating in a provision which appeared to have been aimed more at prevention than punishment. [ABSTRACT FROM AUTHOR]

The article provides a brief description and history of the "insanity defense", which is a legal defense on which the mentally disordered may rely and is now referred to as "not criminally responsible on account of mental disorder" (NCR). It further states that recklessly exacerbating one's own mental disorder with the resulting injury or death of another should be considered criminal negligence and elaborates on the possible forms of punishment which should accompany the proposed offence.

The High Court has reserved judgment in an appeal against the decision of the Western Australian Court of Appeal in Miller v Miller (2009) 54 MVR 367. This appeal calls into question the defence of joint illegal enterprise, which is an answer to liability in the tort of negligence. It is with this appeal that this article is concerned. Two main arguments are presented. The first is that the defence is framed in a highly unsatisfactory way. It is governed by nonsensical rules, many of which are inconsistent with fundamental principles of tort law. Accordingly, should the High Court retain the defence, it is submitted that it should reformulate it so that it blends in with the legal environment in which it resides. The second and more fundamental argument is that the defence should be abolished. It is a stain on the law of torts. Not only are there no convincing arguments in support of it, but there are powerful reasons against its existence. [ABSTRACT FROM AUTHOR]

The article focuses on the legal liability of National Football League (NFL) head coaches for the health-related death of a football player. It explores the NFL culture, the prevalence of heat-related deaths among Americans and football players, and the likelihood of NFL head coaches to be charged with criminally negligent homicide. It also discusses criminal and employment law applied when the death of player was caused by heat stroke and prevention program for heat-related illness.

The changing doctor-patient relationship and commercialization of modern medical practice has affected the practice of medicine. On the one hand, there can be unfavorable results of treatment and on the other hand the patient suspects negligence as a cause of their suffering. There is an increasing trend of medical litigation by unsatisfied patients. The Supreme Court has laid down guidelines for the criminal prosecution of a doctor. This has decreased the unnecessary harassment of doctors. As the medical profession has been brought under the provisions of the Consumer Protection Act, 1986, the patients have an easy method of litigation. There should be legal awareness among the doctors that will help them in the proper recording of medical management details. This will help them in defending their case during any allegation of medical negligence. [ABSTRACT FROM AUTHOR]

The persistence of strict criminal liability for child sexual abuse is attributable, at least in part, to the shortcomings of the existing alternatives, namely, the recklessness and criminal negligence standards. These two standards require juries to define the acceptable level of risk on a case-by-case basis. Juries are ill-equipped to make this calculation in sexual abuse cases, however, and their efforts to do so almost invariably are skewed by evidence of the victim's unchastity. This Article first explores the shortcomings of the recklessness and criminal negligence standards in this setting, and then attempts to develop a viable alternative. Under the proposed alternative, the legislature, not the jury, would define the acceptable risk of sexual imposition. It would calculate this invariant probability threshold in much the same way that juries calculate the acceptable risk in recklessness and criminal negligence cases-by assigning values to the gravity of the potential harm and to the social utility of the conduct. Under this scheme, the jury would be responsible only for deciding whether the risk of sexual imposition exceeded this invariant probability threshold in the defendant's case. [ABSTRACT FROM AUTHOR]

The article discusses the criminal liability of juristic persons in Estonia based on the Penal Code of 2002. It is stated that 2002 Penal Code increased the number of crimes imposed on juristic persons and the sanctions include pecuniary punishment and compulsory dissolution. It notes that a legal person may be responsible for both intentional and negligent acts and the Supreme Court indicated that a legal person may be responsible for an act executed by an employee, which is ordered by the legal person. It also mentions that the crimes in the Estonian criminal law are punishable in the European Union (EU) acts, but the problem lies in the identification of persons whose acts can be imputed to a legal person.

The Trial Chamber of the International Criminal Tribunal for Rwanda, through its judgment in Jean Mpambara case, outlined the significance of culpable omissions, outlining three broad offences under which it could be used as evidence. While it is clear that an omission may be considered as evidence of aiding and abetting or joint criminal enterprise, it is still not clear whether omission of failure of duty to prevent or punish will be considered as part of Article 6(1) of the statute as done by the other trial chambers, or will it be considered as a different species of crime as concluded by the trial chamber in this case? [ABSTRACT FROM AUTHOR]

In 1988 in Hill v Chief Constable of West Yorkshire, the House of Lords denied a duty of care was owed by police to a victim of a serial murderer. The case was interpreted as immunity from negligence actions for police when involved in the suppression and investigation of crime'. Recent cases in Australia and the United Kingdom have confirmed that while blanket immunity from negligence actions for police involved in investigatory functions does not exist, plaintiffs alleging negligence will face considerable difficulties establishing a duty of care was owed. The recent cases provide an opportunity to re-examine the appropriate tests to apply in determining the existence and scope of police duty of care and to reassess the policy grounds underlying the decisions. In doing so the article argues that Australian courts should avoid the UK approach of applying a broad exclusionary rule particular to police, as sufficient safeguards already exist in the Australian High Court's duty of care formulation for public authorities. [ABSTRACT FROM AUTHOR]

The Senate Subcommittee on Fisheries and Wildlife is considering an amendment to the Clean Water Act (CWA) that would require human endangerment for a finding of criminal negligence under section 309(c). This proposal is in reaction to United States v. Hanousek and United States V. Hong, seen by some as overly harsh punishment for mere "accidents," contrary to the intent behind the CWA. Others have defended the decisions, arguing that requiring human endangerment for section 309(c) violations would unjustifiably excuse negligent conduct harmful to the environment and the public welfare. This Note reviews the criminal negligence standard under section 309(c), its application in Hanousek said Hong, and the major arguments proffered by the amendment's proponents and opponents. It concludes that the amendment is ill-advised, risking failure to capture significant environmental harms and depriving prosecutors of leverage in plea-bargaining. [ABSTRACT FROM AUTHOR]

Definitional problems in the law of rape prompted the recommendation by the Home Office Sex Offences Review Team (Setting the Boundaries: Reforming the law on sex offences, 2000) that the ‘defence’ of mistaken belief in the victim's consent should be denied to defendants unable to show that they took reasonable procedural care to establish consent: such failure would have amounted to recklessness. This article contends that this proposal did not go far enough in recognizing the moral culpability of those who make unreasonable mistakes in this context, but went too far in characterizing all those making such mistakes as reckless. It contends that the mens rea of rape should be defined in terms of three degrees of culpability: first degree rape would require knowledge as to the absence of consent, whilst second degree rape would need proof of recklessness as to whether the victim consents. Third degree—i.e. negligent—rape would be subject to a defence of mistaken belief in consent, provided it could be shown that the mistake was neither procedurally nor substantively negligent. The provisions of the Government's Sexual Offences Bill, 2003, are also found wanting; they will create a law in danger of generating miscarriages of justice whilst failing to perform the law's educative function of registering the wrongness of rape. [ABSTRACT FROM PUBLISHER]

People who knowingly engage in risky behavior but fail to think through why their actions are "risky" or "bad" or "dangerous," may not be subject to any criminal responsibility. Yet, by their choices to engage in dangerous actions, these people have shown themselves to be culpable, and thus deserving of punishment, as well as deferrable, since they know the dangerousness of their acts and therefore can decide whether to commit those acts. The law in its current state, presents the danger that opaquely reckless people are being treated as purely reckless and hence, our criminal justice system may be treating them as more culpable than they actually are. For theorists who believe that results do not matter for blameworthiness and punishability, responsibility rests upon the actor's choice. While many theorists advance this argument in the context of attempts and completed crimes, few focus on the result that this argument would have for reckless actors. That is, such a theory commits one to holding that the reckless driver who does not kill someone should be held as responsible as the reckless driver whose conduct results in death.